Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001
An Act to amend the Classification (Publications, Films and Computer Games) Enforcement Act 1995
[Royal Assent 17 December 2001]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
This Act may be cited as the Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 .
The provisions of this Act commences on a day or days to be proclaimed.
In this Act, the Classification (Publications, Films and Computer Games) Enforcement Act 1995 is referred to as the Principal Act.
4. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as follows:(a) by omitting the definition of advertisement and substituting the following definition:advertisement has the same meaning as in the Commonwealth Act;(b) by inserting "or approved by the Minister and published in the Gazette" after "Gazette" in the definition of approved form ;(c) by inserting the following definition after the definition of bestiality :Board means the Classification Board established by the Commonwealth Act;(d) by omitting the definitions of category 1 restricted publication , category 2 restricted publication and Chairperson ;(e) by omitting " section 24 of the Commonwealth Act " from the definition of classification certificate and substituting "section 25 of the Commonwealth Act";(f) by omitting the definition of Classification Guidelines ;(g) by omitting the definition of classified and substituting the following definition:classified means classified under the Commonwealth Act, including reclassified under that Act;(h) by omitting the definition of Commonwealth Board ;(i) by omitting the definition of computer game and substituting the following definition:computer game has the same meaning as in the Commonwealth Act;(j) by omitting the definition of computer generated image ;(k) by omitting the definition of contentious material and substituting the following definition:contentious material, in relation to a computer game, means material that would be likely to cause it to be classified M(15+), MA(15+) or RC;(l) by omitting the definition of Deputy Chairperson ;(m) by omitting "Commonwealth" from the definition of Deputy Director ;(n) by omitting "Commonwealth" from the definition of Director ;(o) by inserting the following definitions after the definition of Director :exempt computer game has the same meaning as in the Commonwealth Act;exempt film has the same meaning as in the Commonwealth Act;(p) by omitting the definition of film and substituting the following definition:film has the same meaning as in the Commonwealth Act;(q) by inserting the following definitions after the definition of guardian :international flight, in relation to an aircraft, means a flight that passes through the airspace over the territory of more than one country and includes any part of the flight that may occur within Australia;international voyage, in relation to a vessel, means a voyage, whether direct or indirect, between a place in Australia and a place outside Australia and includes any part of the voyage that may occur within Australia;(r) by omitting the definitions of interactive game and member ;(s) by omitting "terrorism;" from paragraph (d) of the definition of objectionable publication and substituting "terrorism; or";(t) by inserting the following paragraph after paragraph (d) in the definition of objectionable publication :(e) is classified RC or would, if classified, be classified RC;(u) by inserting "except a vessel on an international voyage or an aircraft on an international flight" after "aircraft" in the definition of premises ;(v) by omitting the definition of prohibited publication ;(w) by omitting the definition of publication and substituting the following definition:publication has the same meaning as in the Commonwealth Act;(x) by omitting the definition of Registrar ;(y) by inserting the following definitions after the definition of responsible person :Review Board means the Classification Review Board established by the Commonwealth Act;Review Committee means the Review Committee established by the Minister under section 41A ;(z) by omitting the definition of submittable publication and substituting the following definition:submittable publication has the same meaning as in the Commonwealth Act and includes a publication called in by the Minister or Director under section 64 ;(za) by omitting the definition of Tasmanian Board .
5. Section 3A inserted
After section 3 of the Principal Act , the following section is inserted in Part 1:This Act does not apply to –(a) exempt films or exempt computer games; or(b) broadcasting services to which the Broadcasting Services Act 1992 of the Commonwealth applies.
6. Part 2, Divisions 1 and 2 repealed
Divisions 1 and 2 of Part 2 of the Principal Act are repealed.
7. Section 14 amended (Conditions applying to category 1 restricted publications)
Section 14 of the Principal Act is amended as follows:(a) by omitting from subsection (1) "as a category 1 restricted publication" and substituting "category 1 restricted";(b) by inserting the following subsection after subsection (1) :(1A) If –it is sufficient compliance with subsection (1)(c)(i) and (d) for a period of 30 days after the decision to reclassify or revoke takes effect if the publication bears the determined markings applicable to the publication before that reclassification or revocation.(a) a publication is reclassified under section 39 or 97A of the Commonwealth Act; or(b) the Board revokes a classification for a publication under section 22B(3) of that Act –(c) by omitting from subsection (3)(a) "category 1 restricted publications" and substituting "publications classified category 1 restricted".
8. Section 15 substituted
Section 15 of the Principal Act is repealed and the following section is substituted:15. Conditions applying to category 2 restricted publications
(1) The following conditions apply in relation to a publication that is classified category 2 restricted:(a) the publication must not be sold, delivered or exhibited to a minor, other than by a parent of that minor;(b) the publication must not be exhibited in a public place or in such a manner that it is visible from a public place;(c) the publication must not be sold or delivered to a person unless the publication bears the determined markings;(d) the publication must not be sold or delivered to a person who has not made a direct request for the publication;(e) the publication must not be sold or delivered to a person unless the publication is contained in a package made of plain opaque material.(2) If –it is sufficient compliance with subsection (1)(c) for a period of 30 days after the decision to reclassify or revoke takes effect if the publication bears the determined markings applicable to the publication before that reclassification or revocation.(a) a publication is reclassified under section 39 or 97A of the Commonwealth Act; or(b) the Board revokes a classification for a publication under section 22B(3) of that Act –
9. Section 16 amended (Offences in relation to category 1 and 2 restricted publications)
Section 16 of the Principal Act is amended as follows:(a) by omitting from subsection (1) "category 1 or category 2 restricted publication" and substituting "publication classified category 1 restricted or category 2 restricted";(b) by omitting from subsection (2) "category 2 restricted publication" and substituting "publication classified category 2 restricted";(c) by omitting from subsection (3)(a) "category 2 restricted publication" and substituting "publication classified category 2 restricted";(d) by omitting from subsection (3)(b) "category 2 restricted publication" and substituting "publication classified category 2 restricted".
10. Sections 16A and 16B inserted
After section 16 of the Principal Act , the following sections are inserted in Division 3:16A. Sale or delivery of publications contrary to conditions
If a publication is classified Unrestricted or category 1 restricted subject to a condition imposed under section 13A of the Commonwealth Act, a person must not sell or deliver the publication except in accordance with that condition.Penalty: Fine not exceeding 20 penalty units.16B. Consumer advice for Unrestricted publications
A person must not sell a publication classified Unrestricted in respect of which the Board has determined consumer advice under section 20(2) of the Commonwealth Act unless the consumer advice is displayed on the publication or the packaging of the publication.Penalty: Fine not exceeding 20 penalty units.
11. Section 17 amended (Offences in relation to unclassified objectionable publications)
Section 17 of the Principal Act is amended by omitting subsection (2) .
12. Section 18 amended (Offences in relation to prohibited publications)
Section 18 of the Principal Act is amended as follows:(a) by omitting from subsection (1)(a) "prohibited publication" and substituting "publication classified RC";(b) by omitting from subsection (1)(b) "prohibited publication" and substituting "publication classified RC";(c) by omitting from subsection (2) "prohibited publication" and substituting "publication classified RC".
13. Section 19 amended (Offences in relation to misleading or deceptive markings)
Section 19 of the Principal Act is amended by inserting after subsection (2) the following subsection:(3) If –it is sufficient compliance with this section for a period of 30 days after the decision to reclassify or revoke takes effect if the publication bears the determined markings applicable to the publication before that reclassification or revocation.(a) a publication is reclassified under section 39 or 97A of the Commonwealth Act; or(b) the Board revokes a classification for a publication under section 22B(3) of that Act –
14. Section 35 amended (Film sold or delivered is to bear determined markings and consumer advice)
Section 35 of the Principal Act is amended by omitting subsection (4) and substituting the following subsection:(4) If –display of the determined markings and consumer advice applicable to the film before that reclassification or revocation is sufficient compliance with this section for a period of 30 days after the decision to reclassify or revoke takes effect.(a) a film is reclassified under section 39 or 97A of the Commonwealth Act; or(b) the Board revokes a classification or consumer advice for a film under section 22B(3) of that Act –
15. Section 41 amended (Application to review classification of film emphasising cruelty or violence)
Section 41 of the Principal Act is amended as follows:(a) by omitting from subsection (1) "Tasmanian Board" and substituting "Minister";(b) by omitting from subsection (2)(b) "Registrar" and substituting "Minister";(c) by omitting from subsection (2)(c) "if the application is made by a person other than the Minister –accompanied" and substituting "accompanied";(d) by omitting subsection (3) .
16. Section 41A inserted
After section 41 of the Principal Act , the following section is inserted in Division 3:(1) On receipt of an application under section 41 , the Minister must establish a Review Committee.(2) If the Minister considers that a classified film unduly emphasises matters of cruelty or violence, the Minister may establish a Review Committee.(3) The Review Committee is to consist of not less than 3 persons who in the opinion of the Minister have suitable knowledge, experience and qualifications to review the film's classification.(4) The members of the Review Committee are to be appointed by the Minister on such terms and conditions as the Minister determines.(5) The Review Committee must review the classification of the film.
17. Section 46 amended (Provisions relating to orders)
Section 46 of the Principal Act is amended as follows:(a) by omitting subsection (2) ;(b) by omitting from subsection (3) "On receiving the order the Registrar must in turn give notice of the making of the order to the person (if not the Minister)" and substituting "The Minister must give notice of the making of the order to the person".
18. Section 47 substituted
Section 47 of the Principal Act is repealed and the following section is substituted:47. Provisions relating to Ministerial acceptance of recommendation
If the Minister accepts a recommendation under section 43 (1) (b) or (2) (b) , the Minister must give notice of acceptance to the person who applied to have the relevant film's classification reviewed, that the Minister has accepted the recommendation of the Review Committee that the sale and delivery of the film should not be prohibited or that the film's classification for this State should not be changed.
19. Section 51 amended (Computer game sold or delivered is to bear determined markings and consumer advice)
Section 51 of the Principal Act is amended by omitting subsection (4) and substituting the following subsections:(3A) A person must not make a computer game available for playing on a pay and play basis unless the determined markings relevant to the classification of the computer game and relevant consumer advice, if any, are displayed on the device used for playing the game.Penalty: Fine not exceeding 20 penalty units.(3B) If 2 or more computer games are available for playing on a device referred to in subsection (3A) , the determined markings and consumer advice to be displayed on the device are those relevant to the computer game with the highest classification under the Commonwealth Act.(4) If –display of the determined markings and consumer advice applicable to the computer game before that reclassification or revocation is sufficient compliance with this section for a period of 30 days after the decision to reclassify or revoke takes effect.(a) a computer game is reclassified under section 39 of the Commonwealth Act; or(b) the Board revokes a classification or consumer advice for a computer game under section 22B(3) of that Act –
20. Section 56 amended (Unapproved advertisement not to be published, &c.)
Section 56 of the Principal Act is amended by inserting after paragraph (b) the following paragraph:(ba) if the advertisement was approved under section 29 of the Commonwealth Act and the approval is revoked under section 13(5) or 21A of that Act; or
21. Section 57 amended (Certain advertisements for films, publications and computer games not to be published)
Section 57(1) of the Principal Act is amended by omitting paragraphs (a) and (b) and substituting the following paragraphs:(a) a publication classified RC; or(b) a publication classified category 2 restricted; or
22. Section 61 amended (Misleading or deceptive advertisement not to be published)
Section 61 of the Principal Act is amended by omitting subsection (3) and substituting the following subsection:(3) If –publication of the determined markings applicable to the publication, film or computer game before that reclassification or revocation is sufficient compliance with subsection (2) for a period of 30 days after the decision to reclassify or revoke takes effect.(a) a publication, film or computer game is reclassified under section 39 or 97A of the Commonwealth Act; or(b) the Board revokes a classification for a publication, film or computer game under section 22B(3) of that Act –
23. Section 62 amended (Classification symbols, &c., to be published with advertisement)
Section 62 of the Principal Act is amended by omitting paragraph (b) and substituting the following paragraph:(b) a publication classified category 1 restricted; or
24. Section 63 amended (Certain advertisements to contain determined markings and consumer advice)
Section 63 of the Principal Act is amended as follows:(a) by omitting from subsection (2) "category 1 restricted publication" and substituting "publication classified category 1 restricted";(b) by omitting subsection (3) and substituting the following subsection:(3) If –display of the determined markings and consumer advice applicable to the publication, film or computer game before that reclassification or revocation is sufficient compliance with subsection (1) for a period of 30 days after the decision to reclassify or revoke takes effect.(a) a publication, film or computer game is reclassified under section 39 or 97A of the Commonwealth Act; or(b) the Board revokes a classification or consumer advice for a publication, film or computer game under section 22B(3) of that Act –
25. Section 64 amended (Calling in submittable publication for classification)
Section 64(1) of the Principal Act is amended as follows:(a) by omitting from paragraph (a) "Chairperson" and substituting "Minister or Director";(b) by omitting from paragraph (b) "Chairperson" and substituting "Minister or Director";(c) by omitting "Chairperson" third occurring and substituting "Minister or Director";(d) by omitting "Tasmanian".
26. Section 64A inserted
After section 64 of the Principal Act , the following section is inserted in Part 6:64A. Calling in films for classification
(1) If –the Minister or Director may, by notice in writing given to the publisher of the film, require the publisher to submit an application for classification of the film.(a) the Minister or Director has reasonable grounds to believe that an unclassified film is not an exempt film; and(b) the film is being published in Tasmania or the Minister or Director has reasonable grounds to believe that it will be published in Tasmania –(2) The Minister or Director must cause notice of a decision under subsection (1) to be published in the Commonwealth Gazette.(3) A person to whom a notice under this section is given must, within 3 business days after receiving the notice, comply with the notice.Penalty: Fine not exceeding 50 penalty units.(4) It is a defence to a prosecution for an offence against subsection (3) to prove that the defendant did not intend –(a) to publish the film in Tasmania; or(b) to cause, authorise, permit or license the film to be published in Tasmania.
27. Section 65 amended (Calling in computer game for classification)
Section 65 of the Principal Act is amended as follows:(a) by inserting in subsection (1)(a) "Minister or" after "the";(b) by inserting in subsection (1)(b) "Minister or" after "or the";(c) by omitting from subsection (1) "Director" third occurring and substituting "Minister or Director";(d) by omitting from subsection (1) "Commonwealth";(e) by inserting the following subsection after subsection (1) :(1A) If –the Minister or Director may, by notice in writing given to the publisher of the computer game, require the publisher to submit an application for classification of the computer game.(a) the Minister or Director has reasonable grounds to believe that an unclassified computer game is not an exempt computer game; and(b) the computer game is being published in Tasmania, or the Minister or Director has reasonable grounds to believe that it will be published in Tasmania –
28. Section 66 amended (Board may call in advertisement)
Section 66(1) of the Principal Act is amended as follows:(a) by inserting "Minister or" after "The";(b) by inserting in paragraph (a) "Minister or" after "that the";(c) by inserting in paragraph (b) "Minister or" after "that the";(d) by omitting "Commonwealth".
29. Sections 66A and 66B inserted
After section 66 of the Principal Act , the following sections are inserted in Part 6:66A. Calling in publication, film or computer game for reclassification
(1) If –the Director or the Minister may, by notice in writing given to the publisher, require the publisher to submit a copy of the publication, film or computer game for the purpose of reclassifying it.(a) the Board proposes to reclassify a publication, film or computer game under section 39 of the Commonwealth Act; and(b) the publisher of the publication, film or computer game resides in Tasmania or has an office in Tasmania –(2) A person to whom a notice under this section is given must, within 3 business days after receiving the notice, comply with the notice.Penalty: Fine not exceeding 50 penalty units.(3) It is a defence to a prosecution for an offence against subsection (2) to prove that the defendant did not have a copy of the publication, film or computer game.66B. Obtaining copies for review
(1) If –the Director or the Minister may, by notice in writing given to the original applicant or publisher, require the original applicant or publisher to make a copy of the publication, film or computer game available for the purpose of the review.(a) an application is made for a review of a classification decision under the Commonwealth Act by a person who is not the original applicant for classification of the publication, film or computer game concerned; and(b) the Board or the Review Board does not have a copy of the publication, film or computer game and a copy is not available to it; and(c) the original applicant or the publisher of the publication, film or computer game resides in Tasmania or has an office in Tasmania –(2) A person to whom a notice under this section is given must, within 3 business days after receiving the notice, comply with the notice.Penalty: Fine not exceeding 50 penalty units.(3) It is a defence to a prosecution for an offence against subsection (2) to prove that the defendant did not have a copy of the publication, film or computer game.
30. Section 67 amended (Exemption of film)
Section 67 of the Principal Act is amended by inserting "or Director" after "Minister".
31. Section 68 amended (Exemption of film exhibited by approved organisation)
Section 68 of the Principal Act is amended by inserting "or Director" after "Minister".
32. Section 69 amended (How does an organisation become an approved organisation?)
Section 69 of the Principal Act is amended as follows:(a) by inserting in subsection (1) "or Director" after "Minister";(b) by inserting in subsection (2) "or Director" after "The Minister";(c) by inserting in subsection (2) "or Director" after "the Minister";(d) by inserting in subsection (3) "or Director" after "Minister";(e) by inserting in subsection (4) "or Director" after "Minister";(f) by omitting subsection (5) and substituting the following subsection:(5) If the Minister approves an organisation, the Minister must cause notice of the approval to be published in the Gazette and, if the Director approves an organisation, the Director must cause notice of the approval to be published in the Commonwealth Gazette.(g) by inserting in subsection (7) "or Director" after "The Minister";(h) by inserting in subsection (7) "or Director" after "the Minister";(i) by inserting in subsection (8) "or Director" after "Minister".
33. Section 70 amended (Approved organisation may apply for exemption)
Section 70 of the Principal Act is amended as follows:(a) by inserting in subsection (1) "or Director" after "Minister";(b) by inserting in subsection (3) "or Director" after "Minister".
34. Section 77A inserted
After section 77 of the Principal Act , the following section is inserted in Division 1:77A. Forfeiture of other seized publications, films and computer games
(1) Subject to the making of an order under this section, if –any other products seized on that day from those premises may be retained by the Crown and, if 10 or more different products are forfeited to the Crown as a result of those proceedings, all of the other products not the subject of those proceedings are, at the expiry of the prescribed period, also forfeited to the Crown.(a) proceedings are commenced for prescribed offences relating to 10 or more different products; and(b) the products were seized on the same day from the same premises –(2) The owner of any products liable to forfeiture under this section (or the owner's legal representative) must, on making a written request to the Commissioner of Police within 2 months after the prescribed date, be allowed to view the products at a time and place fixed by the Commissioner of Police.(3) The owner of any products liable to forfeiture under this section may, within the prescribed period, apply to the court that convicted the owner of a prescribed offence for an order for return of the products.(4) An applicant for an order under this section must give notice of the application to the Commissioner of Police.(5) The Commissioner of Police is a party to any proceedings for an order under this section.(6) If an application is made for an order under this section, the products may be retained by the Crown until the application is determined but in all other respects the operation of subsection (1) is suspended until the application is determined.(7) The court may, on an application under this section, order that a product to which the application relates be returned to its owner if satisfied, on the balance of probabilities –(a) that the product –(i) in the case of a film, is classified with a classification other than X or RC; or(ii) in the case of a publication, is not a submittable publication or is classified with a classification other than RC; or(iii) in the case of a computer game, is classified with a classification other than RC; or(b) that a prescribed offence was not committed in relation to the product.(8) In this section –prescribed date means the date on which a court convicts a person of a prescribed offence as a result of which the total number forfeited of the products seized on the same day from the same premises first equals or exceeds 10;prescribed offence means an offence against section 16(1) , 17 , 18 , 32 , 36 , 52 , 72 or 74 ;prescribed period means 2 months after the prescribed date or, if the owner of the products (or the owner's legal representative) requests that he or she be allowed to view the products, 2 months from the time fixed by the Commissioner of Police for the viewing;products means copies of publications, films or computer games, and includes a combination of such products.(9) For the purposes of this section, copies of a publication, film or computer game do not constitute different products.
35. Section 78 amended (Evidence)
Section 78(1) of the Principal Act is amended as follows:(a) by omitting from paragraph (a)(i) "a film" and substituting "a publication, film";(b) by inserting the following subparagraph after subparagraph (i) in paragraph (a) :(ia) a publication, film or computer game was not, at a date specified in the certificate, classified under the Commonwealth Act or was, at a date specified in the certificate, classified under the Commonwealth Act at a classification specified in the certificate; or(c) by omitting from paragraph (a)(ii) "a film" and substituting "a publication, film";(d) by omitting paragraph (b) .
36. Section 84 repealed
Section 84 of the Principal Act is repealed.
37. Section 88A inserted
After section 88 of the Principal Act , the following section is inserted in Division 2:88A. Transitional provisions (2001 amendments)
(1) Section 51(3A) and (3B), as inserted by section 19 of the Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 , applies to a computer game whether published before or after the commencement of section 19 of that Act.(2) Sections 66A and 66B, as inserted by section 29 of the Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 , apply to a publication, film or computer game whether published before or after the commencement of section 29 of that Act.(3) An amendment of this Act made by any other provision of the Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 only applies to –(a) a publication, film or computer game first published on or after the commencement of that provision; or(b) a publication, film or computer game for which an application for classification is made on or after that commencement.(4) If, as a result of amendments made to this Act by the Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 , the classification of a publication is different to the classification previously assigned to that publication by the Tasmanian Board, a person cannot be convicted of an offence, after the commencement of the Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 , under this Act as a result of the different classification in respect of the publication.
38. Schedule 1 repealed
Schedule 1 to the Principal Act is repealed.
Each of the provisions of the Principal Act specified in Column 1 of Schedule 1 is amended by omitting "Tasmanian Board" on the number of occurrences specified in Column 2 of that Schedule and substituting "Review Committee".
SCHEDULE 1 - Substitutions
Column 1 Provision amended | Column 2 Number of occurrences | 1 | 1 | 1 | 1 | 1 |
[Second reading presentation speech made in:
House of Assembly on 20 NOVEMBER 2001
Legislative Council on 29 NOVEMBER 2001]